Examples of Holmesian Contracts?
posted by Dave Hoffman
As a part of an experimental project, I’m trying to find examples of contracts which, when breached, have a similar psychological profile to a speeding ticket. That is, are there categories of deals where people generally see breach in the way that Justice Holmes purportedly) did: “the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it – and nothing else.”
Most people don’t think of contracts in this way. But perhaps there are certain contexts where they do. The reason I think a speeding ticket is a nice analogy is that most people don’t think of speeding as an ordinary crime, though it is punished by the state. There is generally no moral component to being caught (reckless, high-speed, chases are perhaps a bit of a counter-example).
I’ve come up with a very narrow list so far: (1) breaching certain obligations limiting your use of software downloaded online; (2) late returns to video stores (which might not even be a breach); and (3) a contractor’s duty to finish a job on time. All of these share the characteristic of being commonly breached contracts where I don’t think we would anticipate that the breachee has a reasonable likelihood of feeling morally harmed. I’d appreciate any other ideas you might have.